Critical Perspectives on Law, Gender & Sexuality

Last month, an apparently rare Scottish civil case in which ‘Ms M’ was awarded damages for rape after an unsuccessful criminal prosecution against Stephen Coxen made the news. The often negative and distressful experience of the criminal justice process for sexual violence survivors is well documented, even in cases where the victim-as-witness is treated fairly and with respect by criminal justice personnel, and the case proceeds as it should.

Ms M’s experience was, unfortunately, not this best case scenario. She said that the criminal justice system is a ‘disgrace’: ‘my case wasn’t investigated as well as it could have been’ and ‘how the Crown represented my case, I think the Crown failed in that’. Despite this, she was not ready to give up on using the law to hold Stephen Coxen to account. Although a jury in the criminal case returned a verdict of ‘not proven’, in the Court of Session, Sherriff R B Weir QC found that Coxen had penetrated Ms M’s vagina and mouth with his penis without her consent, and he had no reasonable belief in consent.

At the time of the sexual assaults Ms M was an undergraduate student who met Stephen Coxen when she was on a night out following a house warming party. Ms M was so intoxicated that she did not have the capacity to give meaningful consent. Sherriff Weir concluded that it ‘has been established on the balance of probabilities that the defender ignored what would have been obvious signs of the pursuer’s intoxication, took advantage of her in that state, and continued to do so even when she began to evince distress and attempted to resist him’. Ms M was granted £80,000, to be paid by Coxen (AR v Stephen Daniel Coxen [2018] SC EDIN 53). Ms M said she hopes that the civil case shines a light on the failures of the criminal justice system in rape and sexual assault cases, a point emphasised by the Scottish Women’s Rights Centre who represented her.

On 11 October 2018, the European Court of Human Rights issued a new judgment contributing to the recognition and protection of gender identity within the Council of Europe framework. In S.V. v. Italy, the Court followed up on the recent A.P., Garçon and Nicot v France decision to confirm that authorities’ refusal to authorise a transgender person with a female appearance to change her male forename in the midst of the transition process amounts to a violation of the right to respect for private life under Article 8 of the Convention.

The judgment confirms important principles concerning States’ obligations regarding gender identity, though it fails to address adequately the issue of the legal pathologisation of trans people. Continue Reading »

As we approach the deadline for submissions concerning reform of the Gender Recognition Act (GRA) 2004, debate over the likely effects of adopting a system of gender self-declaration has intensified. However, opposition to reform has come not only from the right-wing media, so-called gender ‘critical’ feminists and the Christian Right. It has also come from within the legal community.[1] In particular, barrister, Julian Norman, has made a series of arguments as to why a system of gender self-declaration will undermine cis women’s rights, and in particular, the right to exclude trans women from women-only spaces.[2]

This article considers the recent case of Karen White and offers a measured response, in place of the heated reactions, the case has so far generated in the media and elsewhere. The key facts about the case are that Karen White, a transgender woman, was placed in HMP New Hall, a female prison in West Yorkshire, while on remand for rape and despite a history of sexual offending, and that while on remand, she assaulted four female inmates. The case has been manna from heaven for the right wing media and those who, with no sense of irony, describe themselves as gender critical feminists, and who oppose trans rights. The Times’ Janice Turner is one journalist who is (rightly) angry about the case, which she likens to ‘locking a fox in a henhouse.’[1]

She calls for prison policy change so as to preclude “male-born (sic) criminal(s) who [have] committed a violent or sexual crime against women” from being allocated to the female estate. While some readers may sympathise with this suggestion, we need to recognise what it and Turner’s fox metaphor masks. First, let us begin with some statistics. Turner refers to a ‘BBC reality check’ that found that there are currently 125 trans prisoners in English and Welsh prisons, 60 of whom have sex offence convictions (48%) (while she does not say so explicitly, these figures appear to be 2017 figures provided by the Ministry of Justice after the anti-trans group, Fair Play for Women, put in an FOI request).[2] Before proceeding further, let us consider this 48% figure. While it suggests nearly half of all trans prisoners are sex offenders, it is actually very misleading. This is because the statistic: (i) only counts trans prisoners who have informed prison officers of their trans status, (ii) does not count trans prisoners with a GRC, and (iii) does not take account of trans prisoners on shorter sentences, because they were not included in the survey. Accordingly, the actual percentage of trans prisoners who are sex offenders is likely to be considerable lower than 48%. This is perhaps especially so given exclusion of prisoners on shorter sentences, as they are, by definition, less likely to be sex offenders. Continue Reading »

The recent Women & Equalities Committee report on paternity leave, while making welcome proposals, is revealing of a fundamental problem with the way we frame issues of gender (in)equality negatively affecting men. In this post, Kyle talks about the importance of framing the dealing with men’s issues not just as parasitic upon women’s rights, but as valuable pursuits in themselves.

“We should take measures to break the glass ceiling and improve the representation of women in top positions in the workplace – this would relieve the considerable pressures on men, who we know suffer breakdowns and depression from their workload, with sometimes disastrous consequences”.

If this headline sounds as though it misses the point and belittles the harms done to women from the inequality it seeks to challenge, it is because it does. If it sounds as though it risks leaving the attitudes leading to these inequalities unchallenged – and therefore recommends strategies likely to be of limited effectiveness – again, it is argued, that is because it does. If readers are viewing it with a sense of disbelief, it is because it is fictitious. But its problematic framing of the issue of gender inequality is, I argue, not too far from what we have recently seen in discussions surrounding paternity leave and the difficulties faced by fathers. The recently-released Women & Equalities Committee (WEC) report – ‘Fathers in the Workplace’ (20 March 2018) – and its presentation in the media, is a prime example; framing issues of gender inequality and challenges facing men primarily within the paradigm of advancing women’s equality and rights.

A few years back, my friend and I attended a panel discussing a Facebook group, the “Gentlemen’s Club,” that several male dentist students had set up.[1] The postings included sexist and misogynist comments about female classmates and the panel set out to address how to respond and promote a more respectful campus culture. I met my friend 25 year ago, while we were both undergraduates. At the time, she worked in women’s organizations and provided advocacy for women experiencing violence. But she had been away from that world for many years. At the end of the panel, my friend turned to me and announced her surprise that nothing had really changed in 25 years.

Her point was twofold. The attitudes revealed in the “Gentleman’s Club” echoed those on campuses during our undergraduate years. That hadn’t really changed. But her point spoke to another way in which nothing has changed. She felt disappointed that, in 25 years, we had not developed much new thinking about the problems. It struck her that we still doing the same kind of work to respond to the same old problems.

The “Gentlemen’s Club” presents only one example of current problems on Canadian campuses.

In recent years, Canadians have been confronted by seemingly endless stories about sexual harassment and violence on campuses across the country. Continue Reading »

While same-sex marriage is visibly gaining momentum (see Australia, Austria, Germany and Malta this year), many countries have not fully recognised the rights of same-sex couples. This usually takes the form of civil unions (e.g. Italy and Greece) or of no recognition (e.g. Poland and Lithuania). However, other solutions are also possible. For instance, some countries recognise only same-sex marriages celebrated abroad (e.g. Armenia and Estonia).